8 July 2012

Trapper Cameron's humbug & poppycock...

"The referendum talks centre on the issue of a Westminster
parliamentary order, which UK Government ministers insist is necessary
to enable Holyrood to hold a legal poll given that Westminster is the
UK's constitutional authority. However, the so-called Section 30 Order is being offered on condition
there is just one in- out question on the referendum ballot paper, a
condition Holyrood is not willing to accept. Mr Cameron is equally adamant he will not accept a two-question
referendum, believing it would lead to confusion and could be challenged
in court." (my emphasis)

If the Prime Minister believes that, then he's poorly advised or playing the tricksy lawyer. At the risk of rehashing familiar themes, Holyrood enjoys legislative competence under the Scotland Act over all things not explicitly reserved from it to Westminster. As the UK Supreme Court have confirmed in AXA General Insurance v the Lord Advocate, "Acts of the Scottish Parliament are not subject to judicial review on the grounds of irrationality, unreasonableness or arbitrariness" at Common Law (Lord Hope, para 52). Instead, Holyrood's powers are limited by section 29 of the Scotland Act, and the institution cannot legislate contrary to the rights enshrined in the European Convention on Human Rights, in conflict with the laws of the European Union, or adopt laws which "relate to reserved matters".

And here's the rub. Under section 30 of the Scotland Act, by Order in Council, Cameron's government is empowered to vary the list of matters reserved to Westminster, as they are set out in Schedule 4 and 5 of the Scotland Act. This doesn't require primary legislation in Westminster like the Scotland Act 2012. Her Majesty's Ministers are able to lay an order before both houses of parliament, and in a trice, with the consent of Lords and Commons, the list of reserved matters and statutes protected from modification is amended. Sounds terrifically easy, doesn't it? By canny deployment of a single piece of paper, Westminster could give Holyrood the power to amend the Misuse of Drugs Act, for example, or re-empower the Scottish Parliament to make rules and regulations respecting Antarctica.

Essentially, this is what is being proposed for the independence referendum. But why? As I've outlined at greater length before and elsewhere, as is, the referendum faces a potentially tricky legal predicament. Both "the Union of the Kingdoms of Scotland and England" and "the Parliament of the United Kingdom" are matters explicitly reserved to Westminster in the Scotland Act. For a referendum Bill from Holyrood to be intra vires, it cannot "relate to a reserved matter". An independence referendum, or indeed a question asking the public about further devolution of powers from Westminster to Holyrood, arguably - arguably - "relates to" these reserved matters, putting its legality in doubt.

Contrawise, we can contend that referendums are not reserved at all, that a referendum Bill has no domestic legal force to enforce independence or further devolution, amends to existing enactments - and accordingly ought to fall within Holyrood's purview and powers. Those are the essential arguments, which are likely to be aired in court, if Westminster doesn't take the opportunity afforded by section 30 of the Scotland Act to clarify that referendums on reserved matters - or at the very least, referendums touching on protected constitutional concerns - aren't powers reserved from the Scottish Parliament. Westminster need not do so. It may try, as proposed earlier this year by Michael Moore, to manipulate this legal uncertainty, employing it in a gambit to force Holyrood to ask only one question, on peril of legal challenge and delay.

The critical point is this: it is within the power of UK ministers to expose or insulate any referendum - asking one question or two - from the ravages and delays of litigation. It need not take on the burden of legislating for a referendum itself. All that is required in a section 30 order, shorn of unacceptable conditions. For the coalition, the question is how brave they are feeling, to enforce their own preference for a single question. They ought to be frank about that. This is entirely about dictating their own preferred referendum terms to Holyrood, and no amount of cavil or weasel-rhetoric from Cameron, Moore or Jim Wallace changes that.

With all that in mind, come back to Cameron's reported "concerns". We can see that it is within the Prime Minister's capacity to immunise the independence referendum from legal challenge, whether only a single question is posed, or another is also asked, concerning enhanced devolution. We've also seen that there is no legal basis for challenging Holyrood's referendum, save for section 29 of the Scotland Act. While Cameron may argue - as others have argued - that a multi-option or multi-question referendum risks confusing people - it is simply fiction to protest that a two question referendum is peculiarly susceptible to legal challenges which a single question referendum won't face.

Two roads diverge in a forbidding wood. The one path brings us directly to our destination, the other ranges circuitously about the forest, adding hours to our journey. Cameron is like the man who tries to dissuade the weary traveller from taking the shorter path, warning him that the way is trapped and perilous, but who busies himself, maintaining the selfsame tripwires which he warns you of, wishing to be well thought of. Trapper Cameron's passive voice is canny but transparent poppycock. A two question referendum "could be challenged
in court" if and only if he and his gambling cronies in the UK government try to make Holyrood work their will with a mousetrapped section 30 order which tries to ordain that only one question is posed in the referendum. To imply anything else is rank humbug, devious hogwash.

13 comments
:

Might Salmond refuse to hold a referendum at all by arguing that the Big Bad English are stopping him holding a referendum in the terms that he,as The Great Leader of The Scottish People, deems appropriate, ie two questions?

I suppose it will depend on whether he thinks there's more to be gained or lost by delaying the issue which in turn depends on whether he thinks the next Westminster Government will be Labour or Tory.

There's a lot to be said for Westminster seizing the initiative and putting the matter to bed for a generation.

Question: can Westminster ignore the result of the Referendum if they choose to do so?

Perhaps Cameron is farting about because he is confident that, given the current poll results, no one is really going to pay attention. And if it sparks Salmond into a rant, most people may just ignore him anyway.

Willie, Salmond cannot afford to ditch the Referendum for any reason (bar some national emergency). If he ditches it, even if he can justify some Westminster interference, his enemies within the SNP will crucify him.

An order under s.30 is an Order in Council and Schedule 7 of the 1998 Act provides that an Order under s.30 is subject to Type A procedure,i.e. subject to affirmative resolution of both the Westminster AND (my emphasis) Scottish Parliaments.

Accordingly, if Cameron proceeds with the draft Order in the UK Government consultation document (which expressly validates an Independence vote if no other question is asked on the same day) and passes that through Westminster, Salmond will be left with a dilemma.

If he wishes a second question (or at least says he does) he will have have no alternative but to vote down that order at Holyrood.

He would thus have forfeited the right to hold a legally watertight Independence Referendum to chance his arm in the Courts for the sake of a second question. If he fails in the Courts, he can ask neither.

The idea that some sort of insurrectionist referendum might be organised without legal authority is absurd. That would require the co-operation of civil servants, local government and the police, all of which it would patently not enjoy without that legal authority.

As you know, it is my long held view that Salmond's objective is to be blocked from holding any referendum but to make it look to be anybody's fault but his own. To that extent I agree with your correspondent above that he is the smartest political operator in town but I can't agree that he is smarter than Cameron!

The question that remains is whether if the rest of the SNP wise up to this they are sufficiently committed to an Independence Referendum to take the offer from Westminster.

Thanks LPW and Ian. The two of them were sat almost in each other's laps at Wimbledon yesterday - why can't they just agree to get on with it, esp. since any strategies devised by their wonks may well not be applicable in the 2014 to come.

This stand-off resembles one of those spaghetti western finales where you could leave the room and make a cup of tea and come back to find the protagonists still staring at each other.

A bit of a sin of omission on my part: I've recognised the Holyrood side of the s30 issue in past blogs but neglected to include it in this one. You're bang on on the procedure, as I understand it.

As I hope should be obvious, my primary focus in this piece of invective was Westminster, and my essential point that Cameron can "fix" the legal uncertainty around a single or a two question referendum equally easily, if he had a will. If he's worried about legal challenges to a two question referendum.

As you say, however, there are implications of that of the SNP and SNP strategy that might be tricky, depending on how the coalition conducts itself. A while back at the Guardian Hugo Young event, I asked Salmond if he'd prefer a legally watertight single question referendum, or a two question poll susceptible to legal challenge. He deftly avoided giving me an affirmative answer.

To speak purely legally, it is helpful to think of Holyrood and Westminster as legislatures enjoying concurrent jurisdiction over matters which aren't reserved. Now and then, the boundaries between reserved and not reserved can be tricky, as in the controversy we're discussing.

Reframe it entirely hypothetically. Holyrood wants to adopt policy A. There is some doubt about whether policy A is reserved or devolved. What's to be done? Westminster can do two things, if it is of a mind. The first option is to amend the list of reserved matters to make clear that policy A is within Holyrood's powers: problem solved. Alternatively, Westminster may pass legislation under its own authority to achieve policy A. The doubts about Holyrood's power to enact policy A would persist, but the policy would become law under Westminster's seal. Problem solved.

At most, this is a simple knot masquerading at Gordian complexity: essentially an excuse for Cameron et al to pursue their own preference for a single question.

I've written elsewhere on this blog about my difficulties decoding Salmond's intentions here, though the devo-max noises have obviously been getting louder these past weeks.

To stick purely to the legalities, however, Scots law has nothing to say about the presence or absence of "mandates" for reform, beyond the formal and institutional questions about control of parliament and occupation of ministerial office. Beyond legislative competence questions under the Scotland Act, the law is mute on whether the FM asks one or two questions.

I don't think it's possible to separate out the law from the politics to that extent.

As you yourself noted some time ago, devo-max or devo-plus must be legislated at Westminister.

As other commenters have noted, creating "further devolution for Scotland" would cause issues for England and for other devolved parts of the UK, which is also a problem for Westminster.

Little though I like to say it, If Cameron as PM at Westminister doesn't want a devo-max option on the referendum, he's got a fair case argument that he and not Salmond is the decider. There is no democratic mandate for a referendum on devo-max as there certainly is on independence: and as you yourself noted, Westminister will have to legislate devo-max if it wins.

There certainly is a mandate for devomax, devoplus or any other variant of devo upwards you want to mention - and there is no referendum required.

We are now on Tam Dalyell's famous motorway with no exits.

In order to dish the Nats, all the major unionist parties have accepted and articulated the need to keep the powers of the Scottish Parliament under review, and to adjust these upwards as necessary, and even occasionally downwards, but only with the agreement of the Scottish Parliament. No credible Scottish party is arguing for a reduction in powers and have never presented such a case to the Scottish people.

The most recent attempt to revise the powers, following the Calman Commission, is now recognised as a dead letter. Yes, the adjustments will continue to be made in line with the Scotland Act, but no one expects these changes to satisfy the aspirations of Scottish voters for more control over their own affairs. David Cameron has even had to slap down Ruth Davidson on this point, just as London Labour slapped down a devosceptic Scottish Labour Party in the 1970s.

Although Calman recommended significant reductions in the parliament's powers, Westminster appears to have bottled it on at least the most significant of these. Not having followed the minutiae, I would be interested to know if any of the reductions were carried through.

As no referendum has been held on the Calman proposals or any of the other adjustments that have been made to the powers of the parliament since 1999 there is no need for one now for whatever variant of devolution Westminster may be persuaded to introduce.

The big question in the run up to the referendum is how close to the brink the unionist will go with their argument that Scots should vote down independence and trust in Westminster to deliver something better.

Westminster's return to business as usual over the Crown Estates brings this issue into sharper focus. Labour in particular has to address the concern that we could expect more of the same if we let Westminster off the independence hook in 2014. And, no, simply asking us to trust England to vote Labour in 2015 is not a credible response.

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